by Jasmine McKinney, Associate Staff<\/p>\n
In late September, a federal judge allowed a lawsuit against Google to move forward, when ruling that Google may indeed be violating wiretap law when it scans the e-mails of users not using a Gmail account.[1]<\/a>\u00a0 Google utilizes automatic scanning of all e-mail that comes through its servers to work its spam filter, build user profiles, and target advertisements.[2]<\/a>\u00a0 The main concern is that when one reads Google\u2019s privacy policy, there is no mention of the fact that the content of e-mails \u2014 either between Gmail users or Gmail users and users of other email service providers \u2014 are being collected.\u00a0 This suit against Google has made it possible for similar lawsuits to surface against other e-mail service providers.\u00a0 In early October, a class action arose claiming that Yahoo violates the Wiretap Act as well as other California laws that forbid intercepting private communications.[3]<\/a><\/p>\n The Electronic Communications Privacy Act serves to regulate the collection of content through wire and electronic communications.[4]<\/a>\u00a0 This Act was an extension to what is commonly called the \u201cWiretap Statute\u201d and forbids the \u201cintentional interception, use, or disclosure of wire and electronic communications unless a statutory exception applies.\u201d[5]<\/a>\u00a0 There were two primary exceptions under the Wiretap Statute.\u00a0 The provider exception grants providers the right to intercept and monitor communications in an effort to combat theft or fraud.\u00a0 Additionally, there is also the exception that when information is readily accessible to public any person is permitted to intercept that electronic communication.\u00a0 In 2005, the Second Circuit interpreted another exception to the Wiretap Act when it ruled in Hall v. Earthlink Network, Inc. <\/i>that Earthlink\u2019s continued reception of emails sent to plaintiff Hall\u2019s account did not constitute an \u201cinterception\u201d under the Wiretap Act because it was part of Earthlink’s \u201cordinary course of business.\u201d [6]<\/a><\/p>\n Lawsuits such as the ones against Yahoo and Google have raised the question of whether e-mail users should have a reasonable expectation of privacy concerning the messages they send via a third party service providers.\u00a0 The third party doctrine that was articulated in Smith v. Maryland<\/i> where the Supreme Court held that once a person involves a third party in communication any legally enforceable privacy rights are lost.[7]<\/a>\u00a0 This is precisely the argument that e-mail service providers have attempted to make.\u00a0 Regardless of which provider an individual chooses to use for their own personal e-mail, once a message is sent to a user who uses some other provider, one\u2019s right to privacy is lost.\u00a0 However, the question remains whether this doctrine should apply to email service providers like Google and Yahoo.<\/p>\n Aside from an expectation of privacy, there are a number of concerns raised by the use of automatic e-mail scanning. \u00a0For example, does Google use automatic scanning solely for the purposes it states or should users be concerned about something more?\u00a0 Further, should users be concerned with whether the information that is scanned from the e-mails they send is stored by email service providers?\u00a0 Overall, where should the line be drawn?\u00a0 The fact remains that we live in a highly technology driven world.\u00a0 If individuals cannot expect their communications via the Internet to be private, by what means can that expectation be met? Perhaps as this recent litigation continues to unfold, a clear answer will be given as to whether email scanning by service providers is indeed permissible under the Wiretap Act.\u00a0\u00a0\u00a0 \u00a0\u00a0<\/p>\n [1]<\/a> Judge Allows Lawsuit Against Google\u2019s Gmail Scans to Move Forward<\/i>, http:\/\/articles.washingtonpost.com\/2013-09-26\/business\/42421388_1_gmail-users-google-s-marc-rotenberg (last visited Oct. 6, 2013).<\/p>\n<\/div>\n [2]<\/a> Id.<\/i><\/p>\n<\/div>\n [3]<\/a> Yahoo Hit with New Lawsuit over Email Scanning in Wake of Gmail Ruling<\/i><\/a> <\/i>http:\/\/gigaom.com\/2013\/10\/03\/yahoo-hit-with-new-lawsuit-over-email-scanning-in-wake-of-gmail-ruling\/ (last visited Oct. 6, 2013).<\/p>\n<\/div>\n
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